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When air traffic is out of control: some of the most dramatic aviation accidents in recent years have resulted from air traffic controller error. When handling crash litigation, use these tips to recognize the negligence and confront common defenses.

Article Excerpt
An airliner crashes into a mountain while landing. A private plane flies into a heavy thunderstorm and disappears from radar. A commuter plane takes off from the wrong runway and crashes. Two jets collide at 37,000 feet. (1)

Each of these incidents was a result of air traffic controller error. Given that controllers are in some way involved in every flight here and abroad, attorneys representing crash victims or their families must investigate not only possible pilot negligence, faulty maintenance, and defective aircraft design, but also possible mistakes in how air traffic controllers handled the aircraft.

The air traffic control system regulates the movement of aircraft to provide safe passage. Air travel is regulated and controlled by the Federal Aviation Administration (FAA), and aircraft are subject to the direct control of FAA employees. Therefore, the United States is subject to suit for the negligence of government air traffic controllers who proximately cause a crash. (2)

Threats to aircraft come from three sources: obstacles, weather, and emergencies. To address these threats, the FAA has devised a system of airways and sectors to enable air traffic controllers to monitor and direct flights. Airways are imaginary paths that aircraft follow. Sectors are geographic areas with horizontal and vertical boundaries. Controllers use both to keep aircraft at certain distances from each other and away from mountains, buildings, towers, and other obstacles by instructing aircraft to climb, descend, change course, change speed, or hold position. The tools available to control aircraft are radio contact, radar, and, to a lesser extent, visual observation.

Aircraft enter a controller's area of responsibility by contacting a controller while on the ground, by activating a flight plan, or when a controller hands off an aircraft to another controller. A ground controller is usually located in a tower and directs traffic on the ground at an airport. A radar, or line, controller is usually in a Terminal Radar Approach Control (TRACON) facility. These controllers are often not in a tower and might be off the airport property; they control traffic not only at major airports but also at all smaller airports within their areas.

Radar controllers are specialists who direct traffic flying to or from a major airport, by controlling planes approaching for a landing, departing from a takeoff, or overflying the terminal area. In addition, en route controllers at an air route traffic control center control aircraft between terminal areas. And remote controllers provide ground, takeoff, and landing clearances at small airports whose towers are often operated by private contractors.

Each of these various controllers may have control of a plane entering, leaving, or flying to an area within the controller's sector of responsibility. Each controller is expected to cooperate with the others in passing aircraft and information to one another as a flight progresses. An aircraft may occasionally be under the control of more than one controller at the same time.

Tools of the trade

Specific regulations and procedures govern how aircraft are piloted. The two that are most commonly used are called Visual Flight Rules (VFR) and Instrument Flight Rules (IFR). A pilot operating under VFR--in clear weather--controls the aircraft according to visual references outside the cockpit. While air traffic controllers have some responsibility to an aircraft flying under VFR conditions, "the primary responsibility for safe operation of the aircraft rests with the pilot, regardless of traffic clearance." (3)

Under IFR, an aircraft's course, speed, altitude, and distance from other aircraft or obstacles are maintained by reference to instruments. Aircraft flying according to IFR--which include almost all commercial flights--are under the primary direction and control of air traffic controllers.

FAA Order 7110.65 is the bible of air traffic control. (4) It spells out the duties, procedures, and methods controllers are to follow. Two sections of the order state their primary responsibilities:

2-1-2. Duty Priority

a. Give first priority to separating aircraft and issuing safety alerts as required in this order. Good judgment shall be used in prioritizing all other provisions of this order based on the requirements of the situation at hand.

b. Provide additional services to the extent possible, contingent only upon higher priority duties and other factors including limitations of radar, volume of traffic, frequency congestion, and workload.

That section of the order is linked to the following section:

2-1-6. Safety Alert

Issue a safety alert to an aircraft if you are aware the aircraft is in a position/altitude...

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